By Rabbi Avi Shafran
“[M]oral and religious views form the only basis for a belief” that marriage can be defined in a traditional manner, according to the August decision by U.S. District Court Judge Vaughn Walker declaring Proposition 8, California’s 2008 voter-approved measure defining marriage unconstitutional. Moral and religious views, Judge Walker is saying, may not constitute the basis for a marriage law.
And so, with the summer came yet another judicial salvo aimed at the idea that certain values rooted in religious tradition are rightfully reflected in secular law.
The relationship between American jurisprudence and “natural law” – a phrase connoting that certain transcendent values inhere in human nature and society – has always been somewhat amorphous. But there can be no denying that many of the essential mores we consider to underlie civilized society have roots in religious tradition. And no doubting that when James Madison drafted the First Amendment he did not likely envision the words “Congress shall make no law respecting the establishment of religion” being invoked to undermine time-honored, cardinal institutions of human civilization.
The vast majority of Americans (including the majority of California voters who backed Proposition 8) who consider certain relationships to be ignoble – or, at very least unworthy of enshrinement as equivalents of what the word “marriage” has always implied – are not religious zealots. Nor are they are trying to enshrine their respective (and varied) religions in American law. Many aren’t particularly, or at all, religious in the first place. And they certainly don’t in any way condone mistreatment of those who are different from them, an affront in its own right to their beliefs. They are simply sensitive to the danger – no, let it be said: the wrongness – of tampering with so basic a societal institution as marriage.
And they have every right to voice – and vote – their understanding of propriety, wherever their judgment’s roots may happen to lie. Some laws are mere social contracts; others, though (and in many ways the most vital), are predicated on the concept of right and wrong – a concept, in the end, bequeathed us by religion.
Proponents of bending the concept of matrimony to encompass unions embraced as acceptable by the Zeitgeist argue that denying marriage licenses to some is rank prejudice; and the would-be limiters, rank people.
But it isn’t, and they aren’t. A traditional conception of so essential and societally vital an institution as marriage constitutes not disrespect of individuals but rather respect – for humanity.
And if, as Judge Walker implies, denying the status and privileges of marriage to any committed human relationships is indeed bigotry, then we are bigots no less to seek to limit marriage to pairs of people, or to those not closely related. Is a marriage law that does not honor polyandry and incest also unconstitutional? (Some people bristle when such questions are brought up. But bristling isn’t an argument.)
The Ninth U.S Circuit Court of Appeals is scheduled to hear oral arguments about Proposition 8’s constitutionality in December; and the issue is expected to end up before the United States Supreme Court.
We can only hope – and, the religious among us, pray – that the final arbiters of the issue recognize that the First Amendment should not be read to eviscerate the values, despite their source in the Torah, that sublimate and ennoble human society.
[Rabbi Shafran is director of public affairs for Agudath Israel of America.]